We welcome the Senate Inquiry report on the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012

OII Australia warmly welcomes the report of the Senate Inquiry on the Human Rights and Anti-Discrimination Bill, and in particular the conclusions regarding protection for intersex people. We strongly encourage the Attorney General to oversee the passing of the bill, as amended, by June 2013.

The report’s conclusions on intersex are as follows:

Intersex status
7.16 The committee received considerable evidence regarding the coverage of intersex status in the Draft Bill. The committee recognises that intersex individuals are often the subject of discrimination in public life, and that as such there is a need for protection on the basis of intersex status in Commonwealth anti-discrimination law.
7.17 The committee agrees with the evidence presented by Organisation Intersex International Australia, and other submitters, that intersex status is a matter of biology rather than gender identity, and as such should not be covered within the definition of gender identity in the Draft Bill. Further, the committee considers that the current requirement in the Draft Bill that intersex individuals identify as either male or female is misguided, and is unhelpful for intersex individuals whose biological characteristics do not necessarily accord with a male or female identification.
7.18 The committee considers, therefore, that intersex status should be listed as a separate protected attribute under the Draft Bill. The committee notes comprehensive evidence from witnesses that the definition of ‘intersex’ found in the Tasmanian Anti-Discrimination Amendment Bill 2012 most accurately provides coverage for intersex individuals. The committee supports this definition as the preferred option for inclusion in the final form of the Commonwealth legislation.
7.19 As a concluding point, the committee is of the view that since intersex status is a condition related to the innate biological characteristics of an individual, it should not be an attribute to which any religious exceptions apply.
…Recommendation 2
7.21 The committee recommends that subclause 17(1) of the Draft Bill be amended to include ‘intersex status’ as a protected attribute. ‘Intersex’ should be defined in clause 6 of the Draft Bill as follows:
intersex means the status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or (b) a combination of female and male; or
(c) neither female nor male.

In a minority report, the Coalition state their support instead for:

A simple amendment to the Sex Discrimination Act, which includes sexuality (or, for completeness, identity as a gay, lesbian, bisexual, transgender or intersex person) as a protected attribute….

Recommendation 2
1.35 Coalition Senators recommend that Part II of the Sex Discrimination Act 1984 be amended to include identity as a gay, lesbian, bisexual, transgender or intersex person as a protected attribute to which the Act extends.

The Senate Inquiry report is hugely important for intersex people in Australia. In addition to the proposals for the clear and explicit protection of intersex people, the approach towards religious exemptions is necessary and helpful to protect intersex children at school and in other environments, and we hope that this will be uncontroversial.

In this regard, we note that the Endeavour Forum (“an association dedicated to supporting family values in the context of situations facing families”) recognised the biological basis of intersex and stated that we are “entitled to full recognition of [our] dignity as human persons” (submission #131). Similarly, the Australian Association for Christian Schools said, “AACS and its member schools have great empathy” for intersex people in their submission (#359).

We welcome the transparency of the proposals for religious exemptions as they apply to other LGBTI individuals, including intersex people who identify as lesbian, gay, queer, trans or bisexual.

Tony Briffa said, for OII Australia:

OII welcomes the recommendations outlined in the report following the Senate Committee’s inquiry, which recognises intersex people accurately and identifies the need for anti-discrimination legislation to protect us. It is pleasing all political parties see the need for these protections, and we urge the Parliament to pass this legislation well before the federal election.

Gina Wilson, president of OII Australia said:

This is a profoundly important report in that it recognises that intersex is a “matter of biology rather than gender identity”, and reflects “innate biological characteristics”. Internationally it represents best practice, proposing the explicit inclusion of intersex people in anti-discrimination legislation for only the second time anywhere.

We would like to thank all the intersex activists and others who contributed to the process, and we’d also like to pay tribute to the LGBTI activists, organisations, and other institutions who supported our case in their submissions or discussions with the Senate.

Morgan Carpenter, secretary of OII Australia added:

We encourage the Coalition parties to recognise that intersex is a biological state, not a sexuality or identity, and to support the Bill when it comes before Parliament.

We warmly welcome the report and we encourage the Attorney General and government to pass the bill, as amended, by June this year.